House Committee Passes Unconstitutional ‘Scaffold’ Bill

Two weeks ago, the Republican-controlled House Judiciary Committee passed H.R.3808, a bill that could fairly be dubbed the “Make High-Rise Construction Work Even Unsafer Act.”

The potential beneficiaries of the industry-backed legislation, which would overrule local scaffold-safety liability standards, include a prominent developer who happens to be the current occupant of the White House.

If Republicans are politically smart, they’ll round-file this bill, pronto.

The measure would override the scaffold-safety liability laws of all 50 states, to make it easier for real-estate developers to avoid compensating a worker who is injured or killed after a fall from an elevated height, thanks, for example, to improperly secured scaffolding.

This would in turn tend to weaken worksite safety, especially in states with strong existing standards.

Introduced late last year by New York Republican Congressman John Faso, H.R.3808 has had no hearings and was reported out of committee by an almost-party-line vote. All but one Republican voted in favor, every Democrat against.

Bill supporters haven’t shown that the measure is needed. They blame absolute liability for “exorbitant” construction costs, and promise its repeal will create jobs, but the data they offer in support of that claim comes from industry sources, and primarily from a single study that turns out to have been not only funded but edited by industry—rendering its findings suspect.

It’s not a good look for the GOP. The 30-second political ads would seem to write themselves: “Republican Congressman X voted to lavish a financial favor on Donald Trump’s high-rise investment properties — by endangering the construction workers who build and repair them.”

The Faso bill is not just dumb politics, though. It’s a bad idea on policy grounds, for three main reasons.

1. Unsafe

Construction work is dangerous. About 16 percent of all American workplace deaths are in the construction trades, and about 40 percent of construction deaths are due to slips, trips, and falls.

The Faso bill would override all state scaffold laws with a uniform national rule. In legal jargon, it would impose the common law standard known as comparative negligence on every state, even states like his own (New York) that use the more stringent standard of absolute liability. Absolute liability places the responsibility for safety squarely on the employer. Comparative negligence, by contrast, requires juries to apportion blame and thus damages.

To gauge how the change would play out in real life, consider one sadly typical example:

In 1997 a New York City construction worker named Marc Proferes fractured his neck, spine, knee and thumb when a construction scaffold he was working on collapsed. Earlier, he had told his supervisor he didn’t think it looked sturdy.

“We’re gonna get killed,” he warned.

The reply: “Punch your card and get to work.”

The scaffold collapsed and Mr. Proferes spent years in bed recovering from his injuries. He still suffers.

Under New York’s century-old scaffold law, the only way Proferes’s employers could have gotten off the hook would have been to show that he had clearly acted negligently, for example, by refusing to use safety gear or by working while intoxicated.

But under the Faso bill, with its lower standard, he might have recovered less, perhaps nothing. Company lawyers could have argued his warning to his supervisor showed he acted freely and therefore negligently.

But should construction workers really be forced to choose between their safety and a paycheck? Bill supporters say yes, but common sense says no.

2. Unconstitutional

If there is a problem with a state’s liability laws, the proper remedy is to amend the law in the state legislature. Congress has neither the authority nor the justification to impose a national liability rule.

Sensing this problem, the Republican authors drafted their bill to apply only to construction projects that “voluntarily” accept federal money. Except it’s not really voluntary. The mandate applies to “any project for which federal financial assistance is used, directly or indirectly.” (Emphasis added.) At a minimum, that reaches every project in the nation that receives a penny of federal business loans or tax credits. In other words, pretty much all of them.

3. Special-Interest

Who’s pushing this thing? Developers. And specifically, New York developers.

The skyscraper capital of the nation, the Empire State has one of the nation’s oldest and strongest scaffold laws. All of the big names pushing the bill are from that state, including bill author Representative Faso and all of his cosponsors. (All of them are also Republicans.) And as we’ve seen, one of the bill’s biggest potential beneficiaries is a colorful developer named Donald J. Trump, who hails from, you guessed it, New York.

The state’s scaffold law has been in effect since the 1880s and has withstood every attempt by industry to amend it in the legislature or overturn it in the courts—most likely, because it works. Having failed to persuade Albany, Faso and friends now turn to Washington.

Let’s hope they fail. If Republicans are smart, they will tear up this unconstitutional and unnecessary bill into a hundred pieces and scatter it to the winds — preferably, from the top of Trump Tower.

Dean Clancy, a former senior official in Congress and the White House, writes on U.S. health reform, budget, and constitutional issues. Follow him at deanclancy.com or on twitter @deanclancy.

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Welcome to deanclancy.com, a site focused on current policy debates, with an emphasis on health care, budget, and tax reform issues, and American renewal.

Dean Clancy is a policy analyst, opinion writer, consultant, and public speaker with more than twenty years’ experience as a high-level policy advisor in Congress, the White House, and the health care industry.

Clancy is a partner at Adams Auld LLC and president and founder of HSAs for All, and serves as a volunteer advisor to the Compact for America Educational Foundation and a board member of several organizations including the Default Clock Committee and Opportunity Solutions Project (an affiliate of the Foundation for Government Accountability).

Clancy describes himself as a ‘decentralist.’ He opposes monopoly, public as well as private, and stands for the little guy and common sense.